COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
LARRY P. COOK
MEMORANDUM OPINION * BY
v. Record No. 2256-99-2 JUDGE WILLIAM H. HODGES
JUNE 20, 2000
DEPARTMENT OF SOCIAL SERVICES OF
MECKLENBURG COUNTY
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
William L. Wellons, Judge
Lucretia A. Carrico (Jonathan E. Green, on
brief), for appellant.
Nora J. Miller (Watson & Nelson, P.C., on
brief), for appellee.
Larry P. Cook ("appellant") appeals the decision terminating
his parental rights to his sons, Larreek and Larrell Garnes
("Larreek" and "Larrell"). Appellant contends the trial judge
erred in finding that: (1) sufficient efforts had been made by
rehabilitative agencies to work with appellant to correct the
abuse and neglect of the children; (2) appellant habitually abused
alcohol or drugs to the extent that his parental ability was
seriously impaired; (3) appellant had received reasonable and
appropriate efforts from rehabilitative agencies to strengthen his
relationship with the children; and (4) appellant had received
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
reasonable and appropriate efforts from rehabilitative agencies to
enable him to substantially remedy the conditions leading to the
placement of the children in foster care. We affirm the trial
judge's rulings.
FACTS
At the May 26, 1999 termination of parental rights hearing,
the parties stipulated that Larreek and Larrell had been abused
and neglected pursuant to Code § 16.1-283(B)(1). Candace Elliott,
a child protective service worker with the Mecklenburg County
Department of Social Services ("DSS"), testified DSS had been
involved with the Cook family since July 1990. In 1990, DSS
received a complaint that Larreek and Larrell had been left alone
and locked in a trailer. The boys are twins and were eleven
months old at the time of the incident. This was not the first
instance in which the parents had left the boys alone. The
parents were charged with criminal neglect, and a petition was
filed concerning the boys' custody. Custody of the boys was
granted to the boys' maternal aunt, Delores Garnes. Appellant and
the boys' mother were ordered to attend parenting classes and
mental health counseling sessions. Garnes had custody of the boys
for about eighteen months.
DSS continued to monitor the family. Appellant completed
five of the six parenting classes, and, Elliott stated that, to
her knowledge, appellant did not attend any mental health
counseling sessions.
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Elliott received another complaint regarding the boys on
May 30, 1997. The boys were residing with their mother at that
time. Larreek had been admitted to a treatment center for severe
depression, homicidal ideations and self-mutilation. Mrs. Cook
did not follow through with the recommended treatment or
medication.
On June 18, 1997 DSS received another complaint concerning
lack of supervision of the children and leaving the children with
improper caregivers. Larreek and Larrell stated they had been
given drugs and alcohol by their teenage babysitters. A
prevention worker continually worked with Mrs. Cook.
In September 1997 Mrs. Cook left Larreek in Poplar Springs
Hospital, did not visit him, and did not maintain contact with the
hospital. The children were again placed in foster care.
Joy Gupton, a social work supervisor at DSS, testified that
DSS developed a foster care service plan with the parents in 1992.
The goal of the plan was to place the boys with another relative
because the boys had been living apart from their parents for
eighteen months and the parents had not found housing at that
time. The children were placed in the custody of their maternal
grandfather, James Brown, where they lived from April 1992 until
sometime in 1996, when their mother again obtained custody.
DSS had submitted several foster care plans over the years.
Initially, the goal of the plans was to place the boys with
relatives because the parents were unable to maintain their own
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home. Based on DSS' lengthy involvement with the family, the goal
of the latest versions of the plans had not been to place the boys
back with the parents.
DSS continued to work a prevention case with appellant in
order to prevent the removal of other children from the family.
DSS provided support and guidance to monitor the children and to
encourage the parents to provide proper care and guidance for the
children. Appellant sometimes requested funds, food, and
assistance with housing from DSS, which the agency provided him
when able to do so.
In March 1994 DSS learned appellant had sold food stamps to
purchase crack cocaine. Appellant also indicated a desire to
attend substance abuse counseling, but only attended one session,
stating he could handle his problems on his own. Gupton testified
that during the years DSS had an open prevention case concerning
the boys, appellant was offered aid, food stamps, assistance with
heating and weatherizing of a mobile home, parenting classes, and
substance abuse counseling.
Christy Mills, a DSS social worker, testified she had been
the case manager for the family since October 21, 1997. She
stated the boys had "severe emotional problems" when they entered
foster care. The boys were withdrawn and "shutdown" most of the
time. Larrell was diagnosed with ADHD and had the language
development of a five year old, although he was eight years old.
Larreek had twice been hospitalized for depression and was
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diagnosed with reactive attachment disorder. He had suicidal
ideations and needed "very, very managed care." Mills stated the
boys needed a stable environment, nurturing and good health. DSS
provided mental health counseling to both boys.
Since being placed in foster care, the boys are doing well in
school and are "very expressive." Mills testified they are
"excelling," "thriving" and starting to enjoy sports. She stated
they are "really, really doing well." Mills also stated that in
December 1997, appellant indicated he wanted to have visitation
with the boys. In January 1998, Mills wrote appellant a letter
suggesting they meet to discuss visitation. Appellant never
responded to the letter.
Appellant's criminal record was also admitted into evidence.
Since 1990, he has had fifteen convictions, including assaulting
his wife and mother, three counts of cocaine distribution, driving
under the influence, and food stamp fraud. Michael Jones of
Piedmont Court Services Community Corrections testified the agency
has supervised appellant on six occasions. On several occasions,
appellant failed to complete the court-ordered community service.
He was also a "difficult probationer," who kept appointments only
periodically. Appellant asserted that he was disabled and could
not perform community service; however, he failed to produce
requested medical records to Jones indicating his disabilities.
Charles Parrish, Chief Correctional Officer for the
Mecklenburg County Jail, testified appellant "didn't adjust at all
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to jail. He was very uncooperative, very hard to please." He was
verbally abusive, aggressive and threatening. Parrish stated
appellant's adjustment was one of the worst he had ever seen.
Delores Garnes testified she has had custody of another one
of appellant's children for eight years, since the child was two
months old. Garnes stated appellant has only occasionally visited
the child. Garnes also testified appellant sometimes drinks
alcohol excessively and in 1997 once told her he could not eat
because he was "coming down off a high." She did not feel
appellant was a fit and proper person to have custody of Larreek
and Larrell. Garnes had custody of the boys from August 1990 to
January 1992 when she entrusted the children to DSS because she
was having problems with the parents.
Appellant testified he and his wife lived with his mother
until the children were removed from their custody in 1991. He
also stated he and his wife separated at about the end of 1997.
Prior to 1997, appellant saw Larreek and Larrell only when the
boys' grandfather brought them to visit him. After he separated
from his wife, appellant saw the boys about once or twice a week.
He stated he provided for the boys with his disability check. He
testified he did not know the boys were supposed to be attending
mental health treatment. Appellant also did not know the boys had
been removed from the custody of their mother until about one
month after their removal.
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Appellant stated that DSS had offered him no services since
his incarceration, nor had DSS discussed with him any services it
could provide him after he was to be released from incarceration
in about one month. Appellant testified he planned to obtain
employment upon his release, get housing and get custody of his
children.
On cross-examination, appellant testified that DSS worked
only with his wife from 1991 through 1995. He did not believe he
needed any help, stating that he had only asked for food stamps.
Appellant admitted he did not attend the court-ordered mental
health counseling sessions in 1990. Appellant testified he did
not trade food stamps for crack cocaine, but pled guilty to the
charge upon his lawyer's advice. He admitted he subsequently
asked DSS for substance abuse counseling, but later indicated he
could take care of himself. Appellant also admitted he smokes
marijuana and has sold cocaine in the past.
Appellant had not seen Larreek or Larrell since August 1997.
He stated that he sold drugs in order to earn money to rent an
apartment. Although he stated he earned enough money to get an
apartment, appellant did not do so. Appellant also admitted that
he does not know the medical condition of his children.
ANALYSIS
I. and II. Code § 16.1-283(B)
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the paramount
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consideration of a trial court is the child's best interests."
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,
409 S.E.2d 460, 463 (1991). Where the trial judge hears the
evidence ore tenus, his decision is entitled to great weight and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it. See Lowe v. Dep't of Pub. Welfare, 231
Va. 277, 282, 343 S.E.2d 70, 73 (1986). "'[T]he rights of parents
may not be lightly severed but are to be respected if at all
consonant with the best interests of the child.'" Ward v. Faw,
219 Va. 1120, 1124, 253 S.E.2d 658, 661 (1979) (citation omitted).
The termination of parental rights is a grave, drastic and
irreversible action. "When a court orders termination of parental
rights, the ties between the parent and child are severed forever
and the parent becomes 'a legal stranger to the child.'" Lowe,
231 Va. at 280, 343 S.E.2d at 72 (citation omitted).
Appellant argues the trial judge erred in finding sufficient
efforts had been made by rehabilitative agencies to work with
appellant to correct the abuse and neglect of Larreek and Larrell
pursuant to Code § 16.1-283(B). Under Code § 16.1-283(B), the
parental rights of parents of abused children may be terminated if
the court finds by clear and convincing evidence that it is in the
best interests of the children and that:
1. The neglect or abuse suffered by such
[children] presented a serious and
substantial threat to [their] life, health
or development; and
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2. It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the [children's]
safe return to [their] parent or parents
within a reasonable period of time. In
making this determination, the court shall
take into consideration the efforts made to
rehabilitate the parent or parents by any
public or private social, medical, mental
health or other rehabilitative agencies
prior to the [children's] initial placement
in foster care.
Code § 16.1-283(B)(1) and (2). Proof that "[t]he parent or
parents, without good cause, have not responded to or followed
through with appropriate, available and reasonable rehabilitative
efforts on the part of social, medical, mental health or other
rehabilitative agencies designed to reduce, eliminate or prevent
the neglect or abuse" is prima facie evidence of the conditions
set out in Code § 16.1-283(B)(2).
The parties stipulated that the children were abused. The
trial judge found appellant had "been frequently before agencies
for assistance," including receiving the services of Piedmont
Court Services. Appellant had been convicted of fifteen offenses,
and he had received several sentences involving probation and
community service. However, the trial judge found, and the
evidence showed, appellant was a "difficult probationer" and "was
not responsive to efforts" to assist him. He also failed to
perform community service until required by the court to do so.
Appellant did not complete the VASAP program despite being ordered
to do so.
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Although appellant argues the rehabilitative agencies worked
only with his wife, appellant had been ordered to participate in
mental health counseling, and he refused to do so. He also failed
to complete parenting classes offered by these agencies. In
addition, appellant testified he did not need any "help."
Furthermore, evidence was presented that DSS provided appellant
food stamps, food, and heating assistance upon his request.
During this time period, appellant was convicted of trading food
stamps for crack cocaine. DSS also offered substance abuse
counseling services, which, again, appellant refused to attend,
stating he could handle his own problems.
Therefore, the evidence supports the trial judge's finding
that sufficient efforts had been made by rehabilitative agencies
to work with appellant to correct the abuse and neglect of the
children. See Code § 16.1-283(B). The evidence further showed
that such efforts were made both prior to and after the children
were placed in foster care. However, appellant failed to respond
to or follow through with the rehabilitative efforts of the
agencies.
Appellant also argues the trial judge erred in finding
appellant habitually abused alcohol or drugs to the extent his
proper parental ability was seriously impaired pursuant to Code
§ 16.1-283(B)(2)(b). Appellant admitted he smokes marijuana and
has sold cocaine to earn money. He had three convictions for the
distribution of cocaine. As stated above, he was convicted of
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trading food stamps for crack cocaine, and he failed to complete
substance abuse counseling. He was convicted of driving under the
influence, and he failed to complete the VASAP program. Appellant
also had a suspended driver's license due to his alcohol abuse.
Garnes testified she had seen appellant when he claimed to be
"high."
This evidence clearly supports the trial judge's finding by
clear and convincing evidence that appellant habitually abused
drugs and alcohol to the extent his proper parental ability was
seriously impaired, pursuant to Code § 16.1-283(B)(2)(b).
III. Code § 16.1-283(C)(1)
Appellant argues the trial judge erred in ruling appellant
had received reasonable and appropriate efforts of rehabilitative
agencies to communicate with appellant and to strengthen his
relationship with Larreek and Larrell pursuant to Code
§ 16.1-283(C)(1).
The trial judge found Larreek and Larrell are children with a
"myriad of problems" who had received a "great deal of care and
assistance" from DSS over the years. The judge also found that
appellant "has had very limited contact" with the boys, has shown
"little interest in them," and has not made "good efforts."
The evidence showed that when the boys were in the custody of
Brown, appellant only saw the children when Brown brought them to
visit him. The evidence further showed appellant failed to
maintain contact with the children even before he was incarcerated
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in 1997. At one time he told a DSS worker he would like
visitation with the children, but he never responded to her letter
requesting a meeting to discuss the matter. Appellant did not
even know the boys were in foster care until one month after DSS
had removed them from the custody of their mother. He further
testified he was unaware of their medical condition and was
unaware they attended mental health counseling. Therefore, the
evidence supports the trial judge's finding.
IV. Code § 16.1-283(C)(2)
Appellant argues the trial judge erred in ruling appellant
received reasonable and appropriate efforts from rehabilitative
agencies to enable appellant to substantially remedy the
conditions which led to the boys' foster care placement pursuant
to Code § 16.1-283(C)(2).
While appellant contends that DSS failed to provide him with
sufficient services to allow the children to return to him, the
record supports the trial judge's finding that appellant failed to
substantially correct the conditions which led to the children's
foster care placement despite DSS' reasonable rehabilitative
efforts. It is true appellant attended most of his parenting
classes; however, the evidence indicated that he failed to
implement what he had learned into his dealings with the children.
Moreover, appellant refused to attend mental health counseling or
substance abuse counseling and continually violated the law,
resulting in incarceration.
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[W]hile . . . incarceration does not,
per se, authorize termination of parental
rights or negate the Department's obligation
to provide services, it is a valid and
proper circumstance which, when combined
with other evidence concerning the
parent/child relationship, can support a
court's finding by clear and convincing
evidence that the best interests of the
child will be served by termination.
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333,
340, 417 S.E.2d 1, 5 (1992).
Prior to his incarceration, appellant made no efforts to
obtain housing for the boys, despite the fact that he testified he
had earned enough money to rent an apartment by selling drugs. He
was unaware of the medical condition of the boys and did not even
know their mother had lost custody of the boys until one month
after this occurred. Although appellant's wife had sole custody
of the children during part of the applicable time period, and DSS
received numerous complaints while the children were in her sole
custody, the evidence showed that DSS attempted to work with the
entire family, including appellant, in an effort to remedy the
conditions which led to the foster care placement of Larreek and
Larrell. In addition, Larreek and Larrell were left alone and
unsupervised while in the custody of both appellant and his wife.
Furthermore, the trial judge stated that, although appellant
was soon to be released from jail for the drug distribution
charges, he would have a significant suspended sentence which
could result in a lengthy incarceration period if appellant did
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not "adjust" his conduct. The trial judge also stated, "Services
have been offered [to appellant], not only by Piedmont Court
Services, but by the social services agency . . . ." In summary,
the trial judge found, "The agency has been very much involved in
helping, and yet, [appellant] has either not responded to those
services or those services have failed to bring him around."
Therefore, the trial judge found by clear and convincing evidence
that it was in the best interests of Larreek and Larrell that
appellant's parental rights be terminated.
The trial judge further found the evidence proved the neglect
and abuse suffered by the children presented a serious and
substantial threat to their lives, health and development. In
addition, the trial judge found appellant has not responded to the
efforts that have been made to rehabilitate him and encourage his
parenting skills, and he has shown "no good cause" as to why he
has not responded to these efforts. The trial judge found by
clear and convincing evidence that appellant has failed to
maintain continuous contact with the children and failed to
provide a substantial plan for the children's future. Thus, the
judge concluded appellant "has been unwilling or unable within a
reasonable period of time to remedy substantially the conditions
which led to these children being placed in foster care." As
discussed above, the evidence clearly supports these findings.
Moreover, Larreek and Larrell have been in and out of foster
care since 1990. "It is clearly not in the best interests of a
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child to spend a lengthy period of time waiting to find out when,
or even if, a parent will be capable of resuming his
responsibilities." Kaywood v. Halifax County Dep't of Soc.
Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Although appellant testified he would get "established" after his
release from incarceration, the trial judge was not required to
place more credibility in appellant's proposed plans for the
future than warranted by his actions in the past. Furthermore,
Larreek and Larrell are performing "exceptionally well" while in
foster care and are now "thriving."
Therefore, evidence in the record fully supports the findings
of the trial court that DSS presented clear and convincing
evidence sufficient under Code §§ 16.1-283(B) and (C) to terminate
appellant's parental rights to Larreek and Larrell.
Accordingly, the decision of the trial judge is affirmed.
Affirmed.
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